What the panel ordered
Petition for Reconsideration denied on the merits.
Applicant filed Petitions for Reconsideration on January 12 and January 18, 2022, which were accepted as timely due to defective service of the Joint Findings and Awards issued November 16, 2021.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The petition was denied on the merits based on the reasons stated in the WCJ's report, which the panel adopted and incorporated.
From the decision · page 2Nevertheless, we deny reconsideration on the merits for the reasons stated in the Report, which we adopt and incorporate herein.
The service of the November 16, 2021 Joint Findings and Awards did not comply with WCAB rule 10629, making the Petition for Reconsideration filed on January 12, 2022 timely.
From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. The WCJ issued the Joint Findings and Awards on November 16, 2021 but served it solely on defendant, designating defendant to perform service of all other parties listed on the Official Address Record pursuant to WCAB rule 10629. However, both the former version and the current version of WCAB Rule 10628 state that "The Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award relating to a submitted issue."1 (Cal. Code Regs., tit. 8, § 10628(a).) The Appeals Board's March 18, 2020 In Re:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Service of the November 16, 2021 Joint Findings and Awards was defective and did not comply with WCAB rule 10629.
Favours Applicant prevailed
This defect made the Petition for Reconsideration filed on January 12, 2022 timely.
From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. The WCJ issued the Joint Findings and Awards on November 16, 2021 but served it solely on defendant, designating defendant to perform service of all other parties listed on the Official Address Record pursuant to WCAB rule 10629. However, both the former version and the current version of WCAB Rule 10628 state that "The Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award relating to a submitted issue."1 (Cal. Code Regs., tit. 8, § 10628(a).) The Appeals Board's March 18, 2020 In Re:
The reasons stated in the WCJ's report were adopted and incorporated by the panel to deny the Petition for Reconsideration on the merits.
Favours Defendant prevailed
The panel relied on the WCJ's report to deny reconsideration.
From the decision · page 2Nevertheless, we deny reconsideration on the merits for the reasons stated in the Report, which we adopt and incorporate herein.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Initial report recommended orthopedic evaluation for left knee and shoulder, psychiatric evaluation with neuropsychological testing, possible cervical spine surgery, and deferred permanent disability rating. Supplemental report assessed permanent disability with apportionment to pre-existing degenerative changes and industrial injuries.
Report dated 9/22/2012 is a valid QME report; applicant waived objections. Report deemed admissible based on testimony. Reports not substantial evidence and failed to comply with regulations.
Report dated 2/12/2014 found applicant permanent and stationary with restrictions on left shoulder and knee due to injury. Report deemed admissible but not substantial evidence due to incomplete medical history and failure to identify all information relied upon.
From the decision · page 6In connection with these cases, reporting had been received from the applicant's primary treating physician Dr. Jonathan Lee (Applicant's Exhibit's "1", "2" and "6"), and the secondary treating physician Dr. Noel Lustig (Applicant's Exhibit "4"). While their status was in dispute, the applicant had also been evaluated by Dr. Ian Brodie (Defendant's Exhibits "J" and "K"), and Dr. Barbara Strong (Defendant's Exhibits "L", "M" and "N".)
Primary treating physician; opinions incorporated into rating instructions as substantial medical evidence to the extent they provided rateable factors of permanent disability.
From the decision · page 6In connection with these cases, reporting had been received from the applicant's primary treating physician Dr. Jonathan Lee (Applicant's Exhibit's "1", "2" and "6"), and the secondary treating physician Dr. Noel Lustig (Applicant's Exhibit "4"). While their status was in dispute, the applicant had also been evaluated by Dr. Ian Brodie (Defendant's Exhibits "J" and "K"), and Dr. Barbara Strong (Defendant's Exhibits "L", "M" and "N".)
Examined applicant once; confirmed 100% permanent disability but no opinion on apportionment; no treatment relationship as applicant refused treatment.
From the decision · page 6In connection with these cases, reporting had been received from the applicant's primary treating physician Dr. Jonathan Lee (Applicant's Exhibit's "1", "2" and "6"), and the secondary treating physician Dr. Noel Lustig (Applicant's Exhibit "4"). While their status was in dispute, the applicant had also been evaluated by Dr. Ian Brodie (Defendant's Exhibits "J" and "K"), and Dr. Barbara Strong (Defendant's Exhibits "L", "M" and "N".)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10964
Petition for Reconsideration must be filed within 20 days after service of final order, decision, or award.
Petition accepted as timely due to defective service of Joint Findings and Awards.
From the decision · page 1Applicant, in pro per, has filed a "Petition for Reconsideration (Amended)" on January 12, 2022 and a Petition for Reconsideration on January 18, 2022. We will treat the Petition for Reconsideration as a supplemental pleading and accept it for filing pursuant to our authority. (Cal. Code Regs., tit. 8, § 10964.) We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will deny reconsideration.
Cal. Code Regs., tit. 8, 10628(a)
The Workers' Compensation Appeals Board shall not designate a party to serve any final order, decision or award relating to a submitted issue.
Service of November 16, 2021 Joint Findings and Awards did not comply with this rule, making the petition timely.
From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. The WCJ issued the Joint Findings and Awards on November 16, 2021 but served it solely on defendant, designating defendant to perform service of all other parties listed on the Official Address Record pursuant to WCAB rule 10629. However, both the former version and the current version of WCAB Rule 10628 state that "The Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award relating to a submitted issue."1 (Cal. Code Regs., tit. 8, § 10628(a).) The Appeals Board's March 18, 2020 In Re:
What proof carried it
The evidence the panel weighed, by kind.
Testimony of DEU Rating Specialist Abigail Santiago was truthful and credible regarding application of the 1997 Permanent Disability Rating Schedule and apportionment.
From the decision · page 11Based on applicant's Declaration of Readiness to Proceed of 8/10/2021, this matter was set over defendant's objection of 8/16/2021 to proceed with cross-examination of the DEU rating specialist Abbie Santiago. During her testimony, which was conducted by AT&T Teleconference by stipulation of the parties, the witness testified in a truthful and credible manner as to how she applied the 1997 Permanent Disability Rating Scheduled (PDRS) to the judge's instructions of 6/22/2021 for both cases, to include consideration of the Multiple Disabilities Table (MDT) and duplicating/overlapping factors of permanent disability as it would pertain to these restrictions. She further indicated that apportionment had been considered based on the judge's instructions.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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